Tag Archives: Law

Time to Modernize Court System

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Judicial Impact Assessment (JIA) is a process whereby the government can anticipate the likely cost of implementing a legislation through the courts and help deliver timely justice to litigants. Litigation demand depends on a variety of factors most of which are not factored in the making of laws. This results in the court system being left with little or no extra resources to cope with additional cases generated by new laws… The Hindu (Judicial impact assessment and timely delivery of justice)

One of the pillar issues of the Barbados Underground through the years has been to focus on a dysfunctional Barbados Judicial System.  It is a fact that timely delivery of justice in the local court system has been compromised because of many factors detailed in the Tales of the Courts.

Fast forward to the present, we have an embarrassing situation where the delivery of justice of the Barbados Supreme Court has been negatively affected because the ‘relatively’ new building is deemed to be a threat to the health of the occupants and has had to be closed for maintenance. The result is that the court system threatens to crash under its own weight- to borrow words from newly installed Attorney General Dale Marshall- as cases have had to be tried using alternative arrangements. Not to forget the ancillary services that form part of the delivery of court services that have to be arranged for as well.

Central to maintaining an orderly society is to ensure we are able to efficiently manage a judicial system that is made relevant. The inability of successive governments to ensure timely delivery of justice by providing adequate oversight has been the biggest challenge. While we are being overwhelmed by basic issues related to occupational health and safety of court buildings, misplaced files, incompetent judicial officers and the like- modern court systems in more enlightened jurisdictions are being planned.

A new flagship court specifically designed to tackle cybercrime, fraud, and economic crime will reinforce the UK’s reputation as a world-leading legal centre, the Lord Chancellor will announce tonight (Wednesday 4 July).

The following article is reproduced to be used as a benchmark to what is required if we are to align with real world demands of the legal system. It is noteworthy how technology will be integrated in the delivery of justice to manage:

  •  case files and applications to the court e.g. apply for divorce,
  • small money claims
  • apply for probate
  • create strategic linkage with the transportation sector to resolve cases.
  • deal with minor (nuisance cases) online

Read the full article (thanks to Senator Caswell Franklyn for sharing)

World-class fraud and cybercrime court approved for london’s fleetbank house site

A new flagship court specifically designed to tackle cybercrime, fraud, and economic crime will reinforce the UK’s reputation as a world-leading legal centre, the Lord Chancellor will announce tonight (Wednesday 4 July).

Published 4 July 2018
From:
Ministry of Justice and HM Courts & Tribunals Service
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  • A new flagship 18 courtroom legal centre providing world-class legal services in the heart of London given go-ahead
  • To be built on the site of Fleetbank House, the court will reinforce the UK’s position as a global legal hub

Developed in partnership with the City of London Corporation and the judiciary, the cutting edge, purpose-built court, which will also deal with business and property work as well as civil cases, will hold 18 modern courtrooms and replace the ageing civil court, Mayor’s and City of London County Court, and City of London Magistrates’ Court. Also included in the court will be a new City of London police station.

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A feasibility study to look at whether a court might be built was announced last October, and now the plan has been given the go-ahead. Speaking to members of the senior judiciary at the Mansion House this evening [4 July], the Lord Chancellor, alongside the Lord Mayor, Charles Bowman, and Lord Chief Justice, will reveal that the court will be built on the site of Fleetbank House in the heart of the City.

English law is currently used in 40% of all global corporate arbitrations, and more than 200 foreign law firms currently have offices in the UK. Revenue generated by legal activities in the UK was worth £31.5bn in 2016, and the top 100 UK law firms generated over £22bn in 2016/17. Built next to some of the world’s leading legal, business and technology firms in the heart of legal London, this court will be a sign to the world that the UK remains the global centre for law and finance.

Lord Chancellor David Gauke said:

The flag of English law is flown in countries across the globe, and London already leads the way as the best place to do business and resolve disputes.

This state-of-the-art court is a further message to the world that Britain both prizes business and stands ready to deal with the changing nature of 21st century crime.

The City of London is the world’s financial centre, hosting an unparalleled cluster of financial, professional, and business services. The City’s legal services offer, clustered around the Temples in the West of the Square Mile, which plays host to more than 17,000 solicitors, is a vibrant centre for international law firms serving their clients across the world.

Commenting on the announcement Policy Chairman of the City of London Corporation Catherine McGuinness said:

This is a hugely significant step in this project that will give the Square Mile its second iconic courthouse after the Old Bailey.

Our rule of law is one of the many reasons why London is the world’s most innovative, dynamic, and international financial centre, and this new court will add to our many existing strengths.

I’m particularly pleased that this court will have a focus on the legal issues of the future, such as fraud, economic crime, and cyber-crime.

Fleet Street may historically be known for hosting newspapers, but I believe with this iconic project it will be seen as a world leading centre for legal services and justice for decades to come.

The Government is investing £1 billion in reforming and modernising courts and tribunals, which has already delivered:

  • A fully paperless system in conjunction with Transport for London – which means thousands of cases involving fare evasion are dealt with more swiftly and effectively.
  • An online system which enables court staff to prepare case files and access them digitally in a courtroom during a hearing – saving 68 million pages of paper.
  • The ability for those convicted of minor motoring offences to make their initial plea online. Some 1500 pleas are dealt with online every week. Court staff and the police automatically receive the completed online plea form as soon as the defendant has submitted it, reducing delays.

In the civil courts people can now:

  • Make a small money claim online – with over 3,000 claims issued in the first month, cases moving through more quickly, and user satisfaction over 80% during the pre-launch pilot.
  • Apply for a divorce online – which has cut errors in application forms from 40% to less than 1%, saving people time and trouble during a traumatic time.
  • Apply for probate online – which has also cut errors, sped up the process, and has a satisfaction rate of more than 90%.

Notes to editors:

  • The timeline for building the new court is subject to finalising funding arrangements and securing planning permission. It is expected to be completed in 2025.
  • The proposal for a new court was announced last October by the City of London Corporation, and work on feasibility has now concluded and a location for the court has been set. Funding will be provided by the City of London Corporation and HMCTS.
  • The court will replace the civil court, Mayor’s and City of London County Court, and City of London Magistrates’ Court, which are owned by the City Corporation and which HMCTS operate. |* The Employment Appeal Tribunal that is currently at Fleetbank House will move to the Rolls Building.
  • The City of London Corporation is the governing body of the Square Mile dedicated to a vibrant and thriving City, supporting a diverse and sustainable London within a globally-successful UK.

https://www.gov.uk/government/news/worldclass-fraud-and-cybercrime-court-approved-for-londons-fleetbank-house-site

There is some irony that the new president  Hon. Justice Saunders of the Caribbean Court of Justice was sworn in at the HoGs conference in Montego Bay yesterday – a court that has been strident in its observations of the failings of the local court to deliver timely decisions. Prime Minister Mia Mottley attending her first HoGs lauded the establishment of the CCJ as an example of how regional countries can leverage regional institutions to effective manage our affairs. Perhaps the time has come…

A Matter of Interpretation

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Today’s Barbados Advocate editorial should be of interest to the BU family – David, blogmaster

For me, as a public legal scholar, one of the more gratifying aspects of the current politico-constitutional enigma owed to the unprecedented outcome of last month’s general election and its consequences, has been the eagerness of citizens generally to seek knowledge on and to discuss what is the appropriate constitutional resolution of these issues. Indeed, some have not been timid to offer their own views publicly on these matters.

In this connection, a number of individuals have recently drawn my attention to an article by my now retired academic colleague, the erstwhile Deputy Principal and Professor Emeritus of History, Pedro Welch, in another section of the press.

Under the caption, “Unconstitutional appointment”, Pedro argues that the appointment of His Grace, the Bishop Joseph Atherley MP, as Leader of the Opposition was not permitted by a close reading of the Constitution and may be unconstitutional. Pedro uses an argument based purely on English grammar to suggest that the relevant section in the Constitution, section 74, contemplates an Opposition with what he terms a “plurality of association”. He states,

“The implication seems clear. The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed. Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority support or group support in the absence of a plurality of such support. In short, a single person cannot constitute a majority in the absence of like-minded others…We may also note that most dictionaries define a majority as the greatest number or part, thus requiring a plurality.”

I commend Pedro for adding the discipline of his scholarship to the public debate and accept the force of his reasoning so far as the English language is concerned. He broached the issue with me on Monday last week and I am pleased to see that he has written on it.

However, against his argument, there are certain conventions in drafting that are to be considered in the construction of a legal provision, One of these, well known to most laypersons, is that “the masculine reference includes the feminine”. As a consequence, it would scarcely be argued that the appointment of the current Governor General, or even that of the current Prime Minister would be unconstitutional simply because the constitutional text, in reference to these offices stipulates, “he”, “him” or “his”.

As it pertains to the Governor General, section 74 (2), for instance, provides-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government, or if there is no such person, the member of that House who, in his judgment, commands the support of the largest single group of such members who are prepared to support one leader.. {Emphasis added]

And for the Prime Minister, section 70 mandates-

The Prime Minister shall, so far as is practicable, attend and preside at all meetings of the Cabinet and in his absence such other Minister shall preside as the Prime Minister shall appoint.

Despite ordinary English usage, it would not be seriously contended by anyone that, by virtue of the words of these sections, the Constitution assumes that the holders of these offices would be men only.

Another convention of statutory interpretation, though one much less well known, is that words in plural form or number include those in the singular and vice versa. Indeed, section 4 of the Interpretation Act, Cap 1 of the Laws of Barbados, captures both of these conventions neatly-

“In this Act and in all Acts, regulations and other instruments of a public character relating to the Island now in force or hereafter to be made, unless there is something in the subject or context inconsistent with such construction,

or unless it is therein otherwise expressly provided-

( a ) words importing the masculine gender include females; and

(b) words in the singular include the plural, and words in the plural include the singular.” [My emphasis]

Thus, the relevant section, s. 74(2), already cited above, would cover the circumstance where there are more members than one who do not support the government (members) as well as that where there is a single member that does not support the government. In that latter case, the notion of a majority would be otiose and therefore meaningless.

This piece is being prepared on the day that Bishop Atherley is scheduled to present his parliamentary response to the Prime Minister’s mini-budget. The nature and content of his response today will serve to establish, in the public mind, the genuineness of his opposition to the governing administration, but once Her Excellency. the Governor General, was so persuaded in her judgment, she had little option in the circumstances other than to appoint him to the position.

The Jeff Cumberbatch Column – Law as a Weapon

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There is no sense of duty to the individuals of the island as a whole. There is no sense of responsibility for broad and reasonable treatment. There is merely a sense of class –Clennell Wickham on the planter assembly of his day.

Material for my weekly musings come from the most unlikely sources. My current reading here, a judicial decision there, a matter in the public domain elsewhere. This week’s fodder comes from, of all places, Facebook and the public group, Old Time Photos Barbados where members post thematic contributions ranging from scenes of bygone Bridgetown, to photos of past sports teams and of clippings from old newspapers.

In this last mentioned category are to be found some true historical gems such as an account of then Trinidad & Tobago Premier, Dr Eric Williams, burning a copy of the Constitution of the West Indies Federation and some other documents in Woodford Square on April 27 1960; a report on the final hours of the Federation on April 11, 1962; and an April 15, 1930 item on the outcome of the Bailey v Wickham libel case.

I consider a commentary on this last most apt for today’s “Musings” since it is published on the day immediately following National Heroes’ Day in Barbados and, ever since the nominations to that category, voices have been raised in support of the inclusion of the defendant in that case, Mr Clennell W Wickham. Too besides, I am a keen student of the law relating to defamation and the admittedly brief case report provides some intriguing points of inquiry.

Moreover, that case itself is inextricably interwoven with the claim for Wickham’s national hero status, given that it was as a consequence of his journalistic advocacy against the planter class that the imputation in question was published and that it was as a consequence of the comparatively substantial award of compensation to the claimant Bailey that Wickham was forced into exile to Grenada from Barbados where , according to one account, he suffered “several years of frustration and great hardship” before dying there in 1938, aged 43.

The historians have been kinder by far. According to Sir Hilary Beckles in his book, A History of Barbados (1990), Wickham, when he became editor of the Barbados Herald, “used its pages to provide working people with information and analyses relevant to their political condition…” And Sir Keith Hunte has remarked, “The Herald provided a medium through which its editor, Clennell Wickham, “poured trenchant criticism on the political behaviour of the local oligarchy and called attention to social ills that needed to be remedied.”

It was such a piece of trenchant criticism that instigated the action for defamation. In the offending article, Wickham recounted how Bailey, who had unsuccessfully contested the seat for the City of Bridgetown, had cancelled his advertising in the Herald and refused to pay for an advertisement that had already been run on his behalf, “ostensibly because Wickham had publically (sic) supported two of the other candidates” in the election.

Wickham wrote further that it was disturbing when men like Mr Bailey, “who make a boast of their wealth are deficient in the qualities of good taste, good humour, and that indispensible quality of gentility which enables a man to take defeat like a man. I have an abiding conviction that he is the only one of the five candidates who could be such a contemptible creature.”

The case was tried before a judge and jury and it is safe to assume that a jury in 1930’s Barbados would scarcely have comprised people similarly situated as Mr Wickham, what with the property and income criteria to be satisfied.

Indeed, these still find place in our existing Juries Act, Cap 115B, though now to a much reduced extent. By section 4 (1)(d) of that Act, qualification to serve requires either a payment of taxes of not less than $ 960 immediately before the qualifying date, or actual receipt of a yearly income of $1440 or, according to section 4(2)(b), marriage to such a person and be otherwise qualified.

In a defamation trial with a jury, the panel plays a critical role. While it is for the judge to determine whether the imputation is capable of being defamatory, it is the jury who decides whether it is in fact so -whether it would tend to lower the claimant in the estimation of right-thinking members of society. The judge would also determine the applicability of any defences. Once that matter has been concluded, it then falls to the jury again to assess the level of compensation payable, if any.

Clearly, the judge here would have found that the words were capable of being defamatory and the jury would also have considered that they were in fact defamatory of Mr Bailey. The brief newspaper report gives no indication of whether the attorneys representing Wickham raised any defence, but the level of compensation awarded -£1450 plus costs-, appear in hindsight almost punitive.

One contributor to my FB page where I shared the post suggests of the sum awarded, “today’s value is about £87,140. This answer is obtained by multiplying £1,450 by the percentage increase in the RPI, but there are other ways of calculating the present value which give values ranging up to £654,400…”

So far as a defence is concerned, the matter appears ripe for an argument that the impugned words were at least a fair comment on a matter of public interest, now known in Barbados law simply as comment –see section 8 of the Defamation Act, Cap 199. Here, Wickham would have had to establish (i) that the imputation was comment and not a statement of fact; (ii) that the comment was based on true facts; (iii) that it was on a matter of public interest; (iv) that it was the honestly held opinion of the publisher; and (v) that the statement was not actuated by malice.

Given the value judgment of “contemptible”, the uncontroverted assertion that Bailey had refused to honour his contractual undertaking and that the matter related to the conduct of a would-be Member of Parliament , I should think that the first three elements would have been immediately satisfied.

As to honesty, since 1887 it had been decided that “fair criticism is bona fide criticism, criticism which represents a possible view of the case, i.e., a view of the case which it would be possible for a reasoning man to hold.

Having not read a transcript of the decision, I cannot comment on whether malice on Wickham’s part was pleaded and established to the jury’s satisfaction. Nevertheless, given the other circumstances, the award appears to be punitively excessive and presumably designed to teach Wickham a lesson. It succeeded.

The Jeff Cumberbatch Column–Non – litigious Resolution of Defamation Lawsuits

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Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FC

I had no intention of returning this soon to a discussion of the law relating to freedom of expression, even if indirectly as I propose to do today, after last week’s excursus on that topic and its contemporary broadening. However, some items in another section of the print media during the past week might conceivably have led to a woefully confused public on a topic that is of clear public interest import currently.

In my perceived role as a public scholar of law, I therefore thought it important for me to clarify the matter in the best way I could and to thereby provide some general learning on the matter.

On Tuesday, October 31, under the headline, “Money for Mia after lawsuit”, a section of the press other than the Barbados Advocate reported on page 5 of its edition the outcome of a defamation action filed by the Honourable Leader of Her Majesty’s Loyal Opposition, Ms Mia Mottley against the publishers of the online newspaper Barbados Today and its editor, Ms Kaymar Jordan, in respect of two articles published in the newspaper whose imputations are by now doubtless in the public domain and not of current relevance to this essay.

The report in the newspaper suggested that there was a hearing before a named High Court judge and that Ms Mottley’s eminent counsel, who were also identified by name, had “successfully argued that Ms Mottley was qualified to practice law in Barbados since December 1987”, the date of her admission to the local Bar.

Doubts as to the authenticity of this report began to surface almost immediately on a Whatsapp thread to which I subscribe, although owing to the sensitive political nature of the matter and the possible implications of one being mulct in damages through defamation by repetition, no details were given.

Nevertheless, on Friday last, in a letter to the Editor of the same newspaper, Mr C. Anthony Audain, attorney-at -law and one of those reported as appearing on behalf of the defendants in the matter, averred that in fact “there were no arguments before the court…” and that “a consent order was agreed between the parties and the actions were withdrawn”.

This would understandably have left readers and the general public nonplussed as to how a matter as serious as this could have been reported in such a horribly incorrect manner to the extent of inventing a court hearing with arguments advanced and all. However, that is a matter for the organ to address and no concern of mine, either immediate or at all. My present remit extends solely to helping the public to understand how it may be possible under Barbados law amicably to resolve a defamation action without a court trial and what might have happened in the instant case.

Barbados, in its Defamation Act 1996, does not expressly include it as one of the desiderata of the statute as does Jamaica, for instance, but both pieces of legislation include provision for the offer of amends that is intended, as the Jamaica Defamation Act 2013 states as one of the principal objects of its Act “to promote speedy and non-litigious methods of resolving disputes concerning the publication of defamatory matter…” Indeed, Part III of that statute is captioned “Resolution of Defamation Without Court Proceedings” and includes, in addition to the offer of amends (called there an offer to make amends), the apology in mitigation of damages.

The corresponding Barbados statute, the Defamation Act, Cap 199, also makes provision at sections 16 to 18 for the offer of amends. According to section 16 (1) –

A person who has published a statement alleged to be defamatory of another may, if he claims that he did not do so intentionally, make an offer of amends under this section.

The subsection further establishes a presumption of unintentional publication, while section 16 (2) provides for the circumstances in which a defamatory publication will be deemed to have been intentional.

In Barbados, as in Jamaica, the offer of amends contemplates three elements. First, an offer by the defendant “to publish or join in the publication of a suitable correction of the statement complained of and a sufficient apology to the party aggrieved; second, where copies of the statement have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the statement is alleged to be defamatory of the party aggrieved; and third, and perhaps most crucial, to pay compensation to the party aggrieved.

The procedural details for making the offer are set out in section 16 (4) –(7), but it is further stipulated in section 17 that on acceptance of the offer by the aggrieved party “no proceedings for defamation in respect of the publication concerned may be brought or continued by him against the person making the offer, but he is entitled to enforce the offer of amends…”

If there is any dispute as to the adequacy of the compensation to be paid, then the matter is referred to a judge for determination. If however, the offer is not duly accepted, then section 18 provides that the defendant may rely, if it so chooses, on the offer of amends by way of defence and, in any case, in mitigation of the damages that may be payable in respect of the defamation.

“A defendant in proceedings for defamation may rely in mitigation of damages on an offer of amends not relied on, or not successfully relied on as a defence.”

Of course, not having been privy to these confidential proceedings or, as it is more crudely put, not having a dog in that fight, I cannot assure the reading public that the above is precisely what occurred in this case, but I trust that it may now be appreciated that not every case of defamation needs be resolved by court action and that the local law makes adequate provision for amicable resolution through an offer of amends that is accepted by the putative claimant.

And Mr Audain’s letter would certainly comport with such a procedure, especially when he affirms, …[t] here could therefore have been no “winning” of any lawsuit as suggested in your article. There was no determination and/or adjudication upon any of the issues before the law court on that day or at all. There was no determination of any matter whether procedural or substantive. The parties themselves agreed on the manner of disposing of the court actions…” [Emphasis added]

The Jeff Cumberbatch Column – Broadening Local Freedom of Expression

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Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

“Freedom of speech [expression] means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorize and which to prevent…” Alan Dershowitz, US Law professor

“As a former member of the US military, I took an oath to defend the constitution which includes freedom of expression. They aren’t kneeling for fun, it’s a protest…”- Guardian vox pop

 Kneeling during the national anthem and flag burning shows utter disrespect for everything this country stands for, especially the military who fight and stand up for our right to protest and freedom of speech. –Guardian vox pop

As is trite, the Constitution of Barbados guarantees freedom of expression among some other rights and freedoms. According to section 20 (1)“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence or other means of communication…”

The formulation of the local constitutional rights and freedoms, in consonance with many others in the region, also makes express insulation from constitutional inquiry a contravention of this right that is effected under the provision of any law that is reasonably required in the traditional public interests od defence, public safety, public order and public health, for the purposes of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, of preventing the disclosure of information received in confidence, of maintaining the authority and independence of the courts, of regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or of regulating public exhibitions or public entertainments or that imposes restrictions upon public officers or members of a disciplined force.

I have taken care expressly to reproduce these qualifications to make the point that the state obligation in respect of not contravening the individual right to freedom of expression is limited by the plurality of the qualifications catalogued in the text of the supreme law, in this case occupying substantially more print inches than the right itself!

One aspect of these restrictions that has endured much lay censure over the years is the extent of the reasonableness of the requirement of the contravention through defamation law to protect the reputation of other persons. The charge is often leveled that our defamation law is variously “archaic”, “obsolescent”, “antediluvian” and essentially out-of-touch with the demands of a modern progressive democratic society.

As I have argued on more than a few occasions in this space previously, this woefully mistaken sentiment is owed to two factors mainly. First, there is the cultural aspect; that there are but a few who are willing to fight a defamation case brought against them all the way to the Caribbean Court of Justice by availing themselves of one the multiplicity of defences provided for in the law. This amounts to as form of self-censorship.

The prohibitive cost of doing so is frequently sacrificed on the altar of insurance against liability for defamation which most responsible publications doubtless carry; a reality that contributes little to the development of a reformist jurisprudence in this area of the law.

This negative portrayal of the local defamation law is also owed in part to an unfavourable comparison with the law in some US jurisdictions that, unlike ours, applies the concept of “the public figure defence” to actions brought by those who may be so categorized. Such an individual may pursue a remedy in defamation only where it is established that the publisher of the defamatory imputation at issue was malicious, in that either he or she knew that the imputation was false or was reckless as to its falsity.

In a region where the majority of defamation actions are either brought by or against political personalities who may be so classified, most public commentators would clearly welcome such a defence.

The “catch 22” situation however is that the identical individuals that would be primarily responsible for instituting a legislative change in that direction stand to be “harmed” most by its implementation. Nor do the regional courts seem keen on implementing this defence in their common law; at least three attempts to invoke it regionally have so far all fallen flat for various reasons.

Nonetheless, for what it may be worth, the Barbados Defamation Act 1996 has broadened the freedom of expression of the local commentator in some significant aspects, most particularly, however, in the area of defences which entails that the matter would have already been lodged in court.

Moreover, while a plain reading of the constitutional provision does not oblige the state positively to ensure the advantageous exercise of this freedom by individuals, technological developments and private initiative that have conduced to the existence of social media and an increase in public expression through popular blogging and the provision of avenues for comment by most online newspapers.

These modes of expression have the added advantage that they may be exercised anonymously, a reality that, according to some, may be favoured by most Barbadians, given the societal climate that prevailed during the period of slavery when it was probably suicidal to stand out from the crowd in any way. Mr Harry Russell in his weekly column in another section of the press recently adverted to this cultural trait. Anonymity therefore ensures that the contributor get his or her point across without drawing undue attention to themselves and risking social, political or economic sanction.

Of course, this opportunity for anonymity does not find favour with everyone, more especially when it is used as a cloak for scurrility and defamatory imputation. That may well be the price we all have to pay for a greater freedom of expression and indeed it may reveal more about the individual than the object of his or her calumny.

There is no doubt however; that these new avenues have served to broaden the exercise of the individual freedom of expression in Barbados, a phenomenon that arguably conduces to a more participatory and, hence, more effective democracy.

The Jeff Cumberbatch Column – Demonstrably Valid?

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Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FTC

There will be time enough, I suppose, for more scholarly reflection on the implications of the decision earlier this week of the Caribbean Court of Justice on an appeal from Barbados where the ruling was that it is not permissible for a person charged with an offence to be convicted of that offence in circumstances where the only evidence against him is an unsigned and otherwise unacknowledged and uncorroborated confession which the prosecution allege was made to investigating police officers whilst in police custody but which he denies making.

According to the judgment, something more is required either in the way of independent verification that the admission was actually and voluntarily made, or in the way of other evidence that independently corroborates or otherwise points to the guilt of the accused. It is notorious that many criminal convictions in Barbados are based solely on these slender pieces of evidence, even though the existing legislation clearly contemplates that the voluntariness of confessions should be corroborated by stipulated technology.

Indeed, the failure to provide the necessary machinery for this circumstance, even though it was expressly commented on by MPs during debate on the measure, was the subject of trenchant criticism by Mr Justice Saunders who bewailed the delay in its implementation after two decades-

“Having enacted what at the time was modern, progressive legislation, a decision was made to suspend the critical sections of the Act that required sound-recording. The ostensible reason was that Barbados lacked the material resources to equip its police stations with the necessary recording devices. Over 20 years later, these sections of the Act remain suspended.”

This deficit in legislative implementation is not new. I have heard it said on more occasions than one that section 26 of our Constitution that serves to render pre-1966 legislation immune from Constitutional challenge on the basis of its contravention of any of the fundamental rights provisions was intended to be a mere holding provision until there could be an official determination of those pieces of legislation that were so implicated. Yet we recently celebrated our 50th anniversary of state sovereignty with that provision still firmly entrenched in place.

Whatever the scholarly commentary on the decision might be ultimately, at least one side the populist view has seemingly been already expressed in rather stentorian fashion, if there is any validity to press reports that the disturbance by gunfire in a certain suburban district one night this week might have been effectuated precisely for the purpose of approval of the consequences of the decision.

Of course, as in these matters, the populist reaction is not unanimous and, understandably, there are those who will view the decision as a backward step in an era where there is a prevalence of unlicensed firearms in the hands of aimless youths and while the unprovoked murder of a citizen going about her lawful business is still fresh in the civic mind. For some, therefore, the decision will be perceived more as a gratuitous sop to the criminal element and as a yet another hurdle in the way of the strict enforcement of the criminal law by the authorities.

Indeed, the recent calls by some members of the public for the official resumption of the execution of the death penalty, despite the clear unlikelihood of this ever again becoming an actuality under our current jurisprudence, demonstrates the degree of personal insecurity felt by the citizenry at this time.

Culpability for the current state of affairs identified in the CCJ decision must lie with those respective governing administrations that have remained content over the years to countenance the status quo of the validity of the confession remaining purely a question of fact; one whereby most juries would be disposed to believe the word of the investigating police officer over that of the accused prisoner as to the voluntariness of the confession and therefore to find the latter guilty as charged.

This blot on our criminal justice system would have inured to the benefit neither of the police officers who would have been subjected to populist suspicions of unconstitutional coercion as alleged by many accused persons nor to the fairness of the process itself whereby better and more cogent provision could have been made for determining the truth.

The political insult

The recently reported observation of former Prime Minister Owen Arthur in response to a critical comment from Sir Richard Cheltenham, a former BLP Cabinet colleague, that the latter’s words were akin to being “savaged by a sheep”, an expression that Mr Arthur has been reported as using with reference to a Freundel Stuart comment on a previous occasion in 2012, calls to mind, in particular, the similar, though even more trenchant, remark of the former British Labour Chancellor of the Exchequer in Dennis Healey, that being attacked by his Conservative counterpart, Geoffrey Howe, was “like being savaged by a dead sheep” and, in general, the witty nature of the political insult.

Sir Winston Churchill, no less sharp of tongue, once described Clement Atlee as “a sheep in sheep’s clothing”, and Healey himself once said of John Prescott that he had the face of a man who clubs baby seals” and of quondam Chancellor, Nigel Lawson, that his diet made him look like “death warmed up” Sometimes Healey was on the receiving end. The comedian Bob Monkhouse, on being informed by a headline that Healey had been caught with his pants down is reported to have averred, “That’s a pity. It will make it easier to hear what he is saying!”

Sharpness of political wit is not restricted to the British though. The Americans have been equally piquant in their ripostes. The gifted Mark Twain once wrote, “Reader, suppose you are an idiot. And suppose you were a member of Congress. But I repeat myself.” And one former Texas Commissioner of Agriculture was heard to declaim that if ignorance ever went to forty dollars a barrel, he wanted the drilling rights to the head of George Bush, the elder.

Some of our leaders over the years might also have found common ground with President Lyndon B Johnson who once claimed “being President was like a jackass in a hailstorm. There is nothing to do but to stand there and take it.”

The last word belongs to Healey. Dame Margaret Thatcher might have had many fans during her prime ministerial tenure. Not Healey, though. He is said to have described Thatcher and her Cabinet as “A raving hag surrounded by ministers fighting each other like weasels in a sack”.

The Right to Counsel

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allegation from an attorney, Mr Mohia Ma’at a who complained that he had been made to spend at least two hours in a police station waiting to see a client

“…allegation from an attorney, Mr Mohia Ma’at a who complained that he had been made to spend at least two hours in a police station waiting to see a client.”

It seems fitting with the passing with Amused we should feature today’ Barbados Advocate editorial (23/12/2016) – Barbados Underground

The acting Commissioner of the Royal Barbados Police Force has recently had cause to remind his officers that the organization does not condone denying lawyers access to clients held in custody. He might also have told them that this is not at all an attorney right exclusively, as might appear from his quoted statement, but also a guaranteed constitutional right of the accused client who is in custody.

According to section 13 (2) of the Barbados Constitution:

Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal adviser of his own choice, being a person entitled to practise in Barbados as an attorney-at-law, and to hold private communication with him; and in the case of a person who has not attained the age of sixteen years he shall also be afforded a reasonable opportunity for communication with his parent or guardian.

The Commissioner’s reminder came in response to an allegation from an attorney, Mr Mohia Ma’at who complained that he had been made to spend at least two hours in a police station waiting to see a client “assisting the police with their investigations” into a charge of murder, but was never afforded the opportunity to do so.

The content of this right to legal representation was examined by the Judicial Committee of the Privy Council in 1991 in the case of The Attorney General of Trinidad & Tobago v Wayne Whiteman. In that case, the Board was called upon to determine as a preliminary point of law, whether a person, upon arrest and detention by the police, had a constitutional right to retain and instruct without delay a legal adviser of his or her choice and to hold communication with him; an issue that had been answered in the negative by the judge at first instance.

The Committee, in a unanimous judgment, decided that the express provisions off the 1976 Constitution of Trinidad & Tobago did indeed protect those rights of the detained individual. Further, that the obligation of the state “not to deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect to those rights”, a provision not present in the Barbadian constitutional text, entailed a requirement that provision be made for informing the arrested and detained person of that that right.

Their Lordships went on to endorse the statement of one of the judges in the Court of Appeal that “I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any ‘in-custody interrogation’ takes place.’’

And they suggested:“…it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information.”

Given the clear statement of the Caribbean Court of Justice that it is prepared to follow decisions of the Judicial Committee unless persuaded to the contrary and the obligation of the state to give substance to the guaranteed rights, this decision should serve as an instruction to our police officers if the constitutional right of the citizen is to be upheld.

The Jeff Cumberbatch Column – An Unreasonable Restraint?

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

A combination of factors informed the relative brevity of today’s column. My university duties, as is usually the case at this time of the year, precluded any undertaking […] Continue reading →

The Jeff Cumberbatch Column – Strange Interpretations

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

Musings:Strange interpretations
10/4/2015
By Jeff Cumberbatch

We are living in interesting times.

[…]
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The Jeff Cumberbatch Column – A Nation Under Law (iii)

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BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate
Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

A Nation Under Law (iii)
9/20/2015
By Jeff Cumberbatch

Initially, […] Continue reading →

Using Ubiquitous Technology to Fight Crime

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the greatest value of such recordings to any court system is that they can lead to out-of-court settlements

…the greatest value of such recordings to any court system is that they can lead to out-of-court settlements…

In 2011 Attorney General Adriel Brathwaite indicated the roadblocks to allow video recording of interviews between police and accused persons should be removed. Two years later BU is aware those roadblocks have NOT been removed. Recently the question was asked in this forum why with the proliferation of mobile devices equipped to record audio and video such devices are not being utilized in crime fig

hting and its prevention in Barbados.

Section (20) 1 of the Barbados Constitution addresses a person’s right to communicate ideas and information without interference and freedom from interference with his correspondence or other means of communication EXCEPT for the prevention of crime or national security. There is a paucity of legislation in Barbados which addresses how mobile devices can be used in crime fighting. It is instructive to note in larger countries like the USA, Canada and the United Kingdom, “evidence” recorded on devices such as computers and mobile phones, whether video or just audio is admissible in a court of law under certain conditions.

Research reveals courts tend to treat videotapes as photographs and hold them to the same verification protocols. The objections to their admission that must be considered by the courts are:

Related Link: Evidence Act 2007

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Tales from the Courts – Sir Marston Gibson a FAILURE XIX

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Marston Gibson, Chief Justice
Former Chief Justice, Sir David Simmons
Attorney General Adriel Brathwaite
Attorney General Dale Marshall
Prime Minister Freundel Stuart

It was with more than passing interest that BU read the Nation article of 15 January 2014 entitled SLOW JUDGEMENTS HEAVILY CRITICIZED.

It is somewhat daunting to note that the Nation has only now espoused this cause as the result of cross-party agreement in the House led by former attorney general, Dale Marshall and supported by the PM and the present attorney general. This, after all, is an issue that BU – Tales from the Courts – has been resolute in airing for some years now and it appears that it is only now that a leading economist has publicly pointed out the obvious, that the demise of the justice system is almost completely responsible for the fall off and withdrawal of off-shore and foreign investment, that it now has been raised. Although, to be fair, last year in Toronto, the PM did serve notice that the justice system and courts had to be sorted out. But still his warning appears to have fallen in deaf ears and he himself has not done anything since.

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QC Showed Judge His Silk

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Submitted by the Mahogany Coconut Think Tank and Watchdog Group
Alair Shepherd QC

Alair Shepherd QC

The behaviour of a Queens Counsel toward a female judge, in Barbados, is another manifestation of the disrespect being displayed toward our women. According to published reports, the Queens Counsel demonstrated his displeasure with the judge by lifting his robe, backing the judge bending over and inviting her to kiss a part of his anatomy.

This single act reveals that disrespect for our women is now rampant at all social and educational levels. We will remain in the forefront of calling for our women to be respected but there is a bigger picture emerging here. Our Caribbean societies have always elevated some professions beyond godlike status. The medical and legal professions have been the chief beneficiaries of such adulation.

While we have had the occasional professional problems with our doctors, we suggest that such incidents have been for from widespread. We can therefore, with some objectivity, concur that the medical professional has maintained high professional standards. However we are aware that some will suggest that unprofessional conduct within the medical professional is not usually made public.

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The Violet Beckles Affair, Separating Fact From Fiction Part V

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Memo to Commissioner of Titles
Department of Inland Revenue document
Doctor Watson declares Violet Beckles’ fit’.
Violet appeals to Nation newspaper for HELP!
The Old Lady appeals to Mia Mottley, former Attorney General
Receipt (1)
Receipt (2)
Receipt (3)
Receipt (4)
Receipt (5)

Related Links:

Justice for ALL!

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Submitted by Loss Adjuster
Justice for all

Justice for all

This is some dynamite!!!! When will justice be served and these dishonest political demons be handcuffed, foot chained and have their bare asses dragged from Bridgetown to Port Ferdinand for they continuous corrupt deeds. There are many other Violet Beckles’ in this country but the only reason you are not hearing their stories is because they were either poisoned away like they tried to do to me!!!

Do I hear you Mr Marshall…Mr Payne!!! Any Thornhills…??? And the rest of them are in the Psychiatric Hospital better known as the mental, watching the green pastures, drooling at the mouth and god knows where else thanks to these so called Lawyers who are our Politicians ..or did someone say fu**??*%%#@ Liars. Does the Barrack Affair, the Clico Mess, Gems of Barbados saga amongst others not put the nail in the coffin for these mother fu&*##@#**.

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